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Marijuana Laws

News/Business. The legal implication for federal-state relations since the recent legalization of marijuana in Colorado and Washington. New.

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Washington 22, Us 21, United States 18, U.s. 7, Nsd 4, Mexico 4, Latin America 4, Angela 3, Obama Administration 3, Narco 2, United Nations 2, Eric Schmidt 2, Deering 2, New York 2, Sweden 2, Canada 2, California 2, Ashley 1, Angela Alluded 1, Henry Stimson 1,
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  CSPAN    Marijuana Laws    News/Business. The legal implication for federal-state  
   relations since the recent legalization of marijuana in Colorado...  

    January 12, 2013
    9:00 - 11:00pm EST  

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the ceo of that company decided that he wanted obama and and-- wanted a woman and that is why he found me. when the guys sit around and say we need a guy on the board. there's harry. there's mike. they say, how do we get hillary clinton? the standard for the woman goes through the roof. and that would be mitigated if there were a requirement that you had a certain percent of women. so how to get american boards to think more about women, i don't know. >> well, we must let people eat. so please join me in
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thankinging lynn for us. >> thank you. >> next, a foreign on state and federal marijuana laws. then a discussion on combating terrorism and national security laws. after that, google executive eric schmidt taking about the latest innovations. >> tomorrow on "washington journal," atlantic editor at large steve clemons and gary schmitt discuss former nebraska senator chuck hagel. and we talk about the book "breakout nations" exploring what makes economies breakout or break down. "washington journal" live at 7:00 a.m. eastern live on c-span. >> now a discussion about legalizing marijuana and
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federal state relations. colorado and washington state recently legalized the recreation nal use of marijuana but it continues to be illegal under federal law. this brookings event is just over an hour and a half. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> welcome, everybody. thank you very much for coming. my name is jonathan roush. i'm a guest scholar in governance studies here at brookings. it's very good of you to come on a cold day when so much else is going on in washington. some of you may have heard the two states that legalized marijuana. the news may have trickled out
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that washington and colorado did this in november. there has been some discussion of the drug policy implication. but today we're going to try to put your heads and ours in a different space and try to think about the power implications of this. i'm a fan of short intro ducks, the thank yous and the bios, not much else but i'll make a slight exception. after thanking of course all of you second our panelists are a true a-team, two of whom came from out west to be with us today. the washington office on latin america and not least the donors who made this session possible including peter louis to whom we're very grateful. the reason this is we think a very good moment to nut
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dialogue on a separate track is that we're in a period on federalism. that's state federal relations the likes of what we have not seen in perhaps since in new deal. we've got a number of hot button issues that are raising fundamental questions. not only issues that are being raised about what the right decision should be but who gets to make the right decision. immigration is one of those where the federal government is asserting that the states need to follow the fed's policy and has had a mixed outcome in the supreme court with that. another is the defensive marriage act, gay marriage where the feds are saying that they must follow a state policy. that's before the supreme court. a third is obama care where the states refuse to follow the federal policy and sued for the right to do that and won a
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mixed holding from the supreme court. in the midst of all this, you have a supreme court which is itself very much -- everybody come on up. there are some seats in the front. don't be shy. the supreme court is very much influx. that area is unsettled in a way that it has not been for a very long time. and in the midst of all of that, talk about putting a cat among pigeons, legalize marijuana. and this is more than any of the previous policies, a direct confrontation with federal policy. they did it, moreover by referendum. lopsided votes to the public. now a parameter for our discussion is i think it's going to say that none of our comments are rehearsed. but i think we're all probably going to agree that federal policies as a matter of law is supreme here. i don't think that's in question.
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what is in question is what is wise for the federal government to do in this situation and what is wise for the states to do because more of them will be considering marijuana and what is wise for the supreme court to do? and a lot of this will play out in the supreme court. we want to talk about wisdom rather than law. an we want to talk about power rather than pot. we want to talk about partly what's going to happen in the next few months when key decisions are going to be made and those are going to ricochet through the other states in congress and the courts. it's really going to be fun. we have a panel of just some remarkable experts. i'll introduce them in alphabetical order and reverse speaking order. troy who's to my far left is a lawyer with the denver office of greenberg trow erring. he was the united states
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attorney for the district of colorado from 2006 to 2009. he's a former member of the attorney general advisory committee of the narcotics and drug trafficking subcommittee of that committee. he's an adjunct professor at the university. and he is distinguished for public service with the drug enforcement administration, the federal bureau of investigation and the secret service. he's going to help us understand law enforcement options and how to balance this power equation to get it right. michael grava, next to mihm is a professor at george mason university school of law and a visiting scholar at the american enterprise institute. the co-founder and former director for individual rights which is a public interest law firm. perhaps most on point today he is in my view probably the country's single most creative and thinker with a book on that
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subject called "real federalism: why it matters, how it could happen" and a very important book on the same subject published last year called "the upside down constitution." and finally angela hawkins who's to my immediate left is associate professor of economics and policy analysis at pepperdine university. she comes to us all the way from california on the redeye. thank you so much for that. she focuses on drug, crime, corruption. we have some seats in the front -- we've got at least four. six, seven, eight. eight or nine seats so come on and join us. angela led a cost benefit analysis. she is a co-author of two very relevant books "drug and drug policy: what everyone needs to
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know" published by oxford. marijuana legalization. she is going to help us understand some of the drug policy implication of what's happening. our panelists will talk about 10 minutes each. say whatever they want to say and will probably go straight to question, though perhaps with a bit of dialogue along the way. angela, do you want to kick it off? >> thank you. thank you for the opportunity to be here today. when we think about the implications of what's happening in colorado and washington and marijuana legalization, it's very important to distinguish par juan from the legalization of other drugs. the ideological track that we find ourselves falling into quickly. marijuana is different. par wana legalization is a much smaller policy reform than legalizing any of the other drugs would be. about a third of americans have decriminalized marijuana.
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whether you live in a state that it is legal or not most people don't even know. so it was much more gentle in that direction. in temples of actual marijuana -- terms of actual marijuana legalization it does matter. it got on to the books in colorado and washington through an initiative process. that doesn't go for a capable design. the answer being, well, if you want to go there, i wouldn't start here. and that's where we are. so we have very little wiggle room in those states to shake policy in a positive direction and we have an information
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vacuum because no other jurisdiction in the world has legalized marijuana. not even the netherlands. we have uncharted territory. and we would not go through this aze quickly as we want in washington. we will study a well conceived legalization regime. but this is where we're at. if the experiment in washington and colorado are about to proceed, the question mark remains -- is there a great deal about marijuana that we don't know now? there's a lot of speculation. sometimes the speculations are wild. and it will -- little is known on both sides of the debate. what happens to abuse? do we see dramatic increases and if there is a dramatic increase does it persist of a time? typically there are dramatic changes around the policy
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changes anyway. things move. and things start to settle down three or four years down. are we going to have the patience to wait and see what happens when this shakes down? what's going to happen to dependency in those states? since the age of initiation change our kids going to start earlier? are they going to use more? and what's going to happen to those children? what's going to happen to drunk driving? what's going to happen to drug driving? usually consequential. what will happen to e.r. admission? will criminal behavior change? what's going to happen in those neighborhoods? and very important probably more important than all, what is the relationship between marijuana and our most important drug of all, alcohol. if marijuana legalization leads to an increase in alcohol use and how we feel about it if it leads to a decrease in alcohol
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use. and we don't know. we're just guessing now. if there are substitutes that is if we use them together this is a very different universe if one gets traded after the other. we are just guessing about the magnitude of these relationships. and these are extremely consequential following a major event like this. so surely the federal government will be concerned with these kinds of options. and if these experiments are allowed to proceed we'll learn about these important issues and we'll know. and that information vacuum will hopefully be closed. i'm really frustrated by a lack of knowledge when making marijuana policy in the dark. i would like to see these experiments be given a chance to at least play out long enough for us to learn and it's easier to undo an experiment in two states than in many states and other states. this is the time to use the language of experiment
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mentation. the primary concern of the fashion will be if colorado and washington will lead the rest of the country? colorado and washington may become the way for the other 48 states. supremacy clause aside, it does not seem reasonable to expect the federal government to allow colorado to create a system that profoundly affects the other state. so the price of federal aquiescence should be minimizing out of state consequences. when it comes to legal marijuana affecting other states, you hear mostly -- i think it makes for a -- you mostly read about the kids going off to the mountains. moving towards people is equally important with moving in both direction is important. but people moving in with tourism somehow attracts more stories. this is going to be extremely
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flunetial. if and when a matter of time the subjects in those stories include children. the government might want to make a show some effort to stop pot terrorism promotion. it needs to try to make it stop. if they make a good effort to stop tourist promotion -- stop the promotion of pot tourism and it happens anyway, they can just say it's a hard thing to do. but if they don't get involved, it looks as though they're condoning it. the movement in both directions, are equally important. you might expect to see an effective band of marijuana sellers promoting out of nonresidence use and the justice might say if you advertise out of state either by pot going to people or people going to pot, if you advertise, we don't care how big you are or where you are or
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whether you comply with your state's rule, we're going to get you. prioritizing is very important on that sort of promotion. private promoters as well as states that aren't bothering on their promoters. the federal response we watch very closely by colorado and washington today. but they will also be watched very closely by the other states that are considering their own marijuana reform. what about these states? massachusetts, california, oregon, nevada, maine. the question is no longer when these states -- if they'll legalize -- an there's compelling evident that suggests they'll be legalizing in short order. so the language of experiment mentation becomes much harder. you have to think about how to
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handle it. what have the vergs of those laws look like? how will they be affected by how the world feels now? don't think they aren't paying attention. the federal government is going to have a much harder time thwarting it in colorado than in washington. why? because in colorado it's loosely written. it's much easier to crack down on it. if you want to get the federal government off your back is to repeal the marijuana laws and no regulations in place. that's a perverse situation, a really perversion situation. an aggressive federal response could simulate more loose
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versions of marijuana legalization with even fewer protection for the groups of people we care about like our children. on the other hand, federaling a sis could use this to shape the markets in a way that offers more protection. they could use selective enforcement, make sure they go after the target of marijuana related businesses that are advertising or other yuky things we rather keep from those products. it will be fascinating whether that learning is allowed to take place. so far the federal government is given very little indication of how it will proceed. let's take it back to davis. buckle up, it's going to be a bumpy ride. >> thank you. if you just clarify a point. it may be worth noting that on the ground issue here is that
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although federal law prohibits marijuana, the states can't enforce that, is that correct? >> in colorado, with -- in colorado, there's personal use. there's no way to control that. how do you have the man power to control ha? a shop that is only dedicated to selling only marijuana products like in washington state, it's so easy to send a couple of hundred letters and you're done. you're going to go after the lan lords for renting out space. it's so much easier to shut down a shop than it is in this environment. the colorado version of the law makes the law enforcement side of this much more challenging. >> and so the next thing that
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they could do is simply repeal it. and say if you're going to crack down on our regulatory system, we'll legalize without a regulatory system, then do what you can. >> you might notice that some of the initial ones were rebellious by nature. i think marijuana users describe themselves -- some of them have a distaste for it being legal because they're now abiding with the law. if what there is is a very aggressive response you're going to tap in their rebellious spirit. >> we're seeing a breakdown of a federal relationship. michael will give us a broader context than what we're seeing. >> there is a sort of tempting federalism prospect on this which sees something along the
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following lines. and angela alluded to this. look, the resurgence of american federalism because states have preferences here. there's no reason. let's experiment. i don't think that's necessarily wrong. but i want in the spirit of the panel complex fy this a little and make a few quick points. the first one is this -- look, it's a problem of american federalism how to stabilize political experiment mentation and come partmentize along state line and the reason is always the same the state over just kill you. turned current regime, federalism, experimentation can't take place and it's problematic if you
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decriminalize it, you won't be able to continue the flow of marijuana. you can't do so as a practical manner and angela knows about that much more than i do. but i know you can't do that as a constitutional matter because once marijuana is just another article of commerce, states can't ban the import. maybe in that situation you need a federal law along the following lines. the transportation into any state for delivery or use of marijuana in violation of the law is he or she prohibited. i didn't make that up. that's the webkinian act in section two of the 2 amendment in dealing with the liquor and what those things try to do is to allow states to remain dry. maybe you need something like
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that. you see something with very similar lines at my rate with respect to gay marriage what domea tries to do in part is come part meantize gay marriage along state lines. and that isn't going so well either. and what you to ask the apostle of experiment tation seems to me in those kind of circumstances, look, are you really in favor of a decentralized solution or is this island hopping towards your favorite solution? we don't ask that question often enough but maybe at one of these days we will. that's my first point. my second point, i think and third point are much more important at least to me. there's a preoccupation in the land with the question. how far does federal power extend under the powers doctrine? how far does the commerce law reach with respect to
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possession? that was a question in the rice case an i'm not going to reargue you that here or even try because my question is about the depth of the federal power or what madison called the operation of federal power. . assuming congress has a power, in what form can it exercise that power and act on states? that's a hugely important question especially if the powers reach as far as they do today. so allow me to minutes of common law 101 on the basic constitutional structure. the first basic rule is that jonathan alluded to the powers reach congress can preempt states any time it wants because federal law trumps any state law because that's the basic order. that's implicated in the dope debate but not i think in a very interesting way. state laws provide or may provide a safe harbor against
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local prosecution under state law but not of course immunity against federal law. i rebling nice there's an arizona state ruling to the effect that seems to suggest the opposite but i think that's no good and it's plainly wrong. that's the first proposition on preemption. the second proposition is that the federal -- the federal preemption and supremacy must take the form of a prohibition that is to say either a direct regulation of private conduct. don't smoke dope or as a true preemption case direct or imply prohibition against certain forms of state conduct. an example, no state shall go anywhere near the rates, routes of airline carriers. that's preemption, that's prohibition. to put it in the terms of what they put it, the federal government may not common deer states, that is to say it
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cannot compel state legislatures to enact laws. and it cannot compel state officers to execute federal laws that's prince vs. united states. that's the most immediate implication that no state has to criminalize marijuana just because the feds do. and no state has to enforce federal laws or prohibition although state courts, of course, are still required to do so. now it turns out that it sounds trivial but i think it plays itself out and it's much more important than the marijuana context. so here's an example. excuse me. one of these days the supreme court will decide whether it wants to grant or not in the second go around in a case called bond vs. united states. if the goal is a marital
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dispute, she, wife, smeared a chemical on a doorknob and the car door of her rival, and this resulted in a thumb bar. and she was prosecuted by officials in federal that implies the chemical weapons convention. it's called bond vs. the united states. is the federal law even constitutional? i don't think so. but the third circuit said yes. but even while saying yes, all of the judges on the third circuit said, what do you people there at the local level think when you enforce these kinds of federal laws? you don't have to. the reason why this matters is, you know, the heritage foundation has to have an overcriminalization work group for the past, i don't know, 15, 20 years and it's never gone anywhere. but it might go some place if
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local officials can stop themselves from corporating with the feds and enforcing these ludicrous federal laws. many of them would turn into the press releases that they deserve to be. and if they stop doing so here that will be progress to my mind. now, there's a much bigger problem or a much bigger implication here and that comes to light if you ask yourself, why is it that the united states constitution has this regime? preemption, yes? common deering, no. there's a decent in the prince case written by justice briar where justice briar says something along the following lines -- many federal systems in the world rely on common deering on the execution of federal orders by state officials and he mentioned the european union. and they do so second said justice briar because it's more federalism frankly because if the feds must enforce their own
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laws, you'll go centralization and the federal government will send swarms of officers and you'll get enforcement rigid di and you'll get what it is expected to result. there are answers to this questions. and i'll give them to you for free. the first thing is that commandeering, partnership destroys responsibility and accountability. dook at the e.u. -- look at the e.u. did the e.u. destroy greece or did greece destroy the e.u.? it's probably both. but they both blame each other. all of this arises from intergovernmental corporation and commandeering. they have the example of commandeering in front of them. and we'll see the article of confederation and they wrote
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the constitution that prohibits this and makes it very, very difficult. the second objection to justice briar or the objection to the second part, well, if the feds wants to send a swarm of officers, let them try as language la already suggested they can't and they won't. and if they do they will have to pay the fiscal and the political price. so i think in a weird way it would actually be great if we have f.b.i. agents and in santa clara breaking down the doors of gravely ill pot smokers that will tell people more than the cato institute. one last point about this and i'll end. you see the force of the anti-commandeering rule and something that justin mentioned and that is the affordable care act. this seems far removed but it isn't. if you look at the affordable care act, the same reason, how
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far does tax power go? how far does commerce power go? but the mandate that was at issue in that case in the nfib case, that's not the engine that drives the affordable care act. the engine that drives that act is the exchanges, the state exchangeses which weren't even an issue in that case but will be, i hope. here's the way this works. initially the administration and congress wanted to commandeer states to establish changes. they then realize that oops, we can't do that because there's the anti-commandeering rule and that will be unconstitutional. and insthread be a preemption regime. either you sblish an exchange under our orders and in accordance with our desire or else we will stroll into your state and do it for you. and i think it's great 18
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states or something like that have said, come on in. let's go. many states have also said no to the medicaid expansion. if you want to do this, you federal government will take responsibility for the inevitable failure of these regimes. if you want to build this contraption build it on your own. there are of course, the usual voices that say, oh, come on now, this is destructive of federalism and it's destructive of health care. and i don't think it's true at ausm i think the federal law, this convoluted structure will be without the constitution. what matters is the state's insistence on letting the feds take full responsibility for whatever transpires from this deprsh this travesty and that to my mind is the state and
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federalism's finest moment. >> thank you, michael. let's clarify a little bit, the policy implication of what you're saying. so, we have this peculiar situation where federal law is supreme but states have the enforcement cloud. i gather, although you're quite indirect and hard to read that you're not a fan of federal partnership. [laughter] a lot of -- a lot of it -- we get that impression so a lot of the conventional wisdom is the federal government and the states have got to work something out. it's the only way to do this. make this work going forward. if in your view they shouldn't work this out, something's got to give, right? either the state has to defacto . what, katy bar the door? or the federal government try
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to enforce and hire the agency to step in. do you support either of those outcome? >> i have no view of the sort of policy implications at all. >> i'm not asking about marijuana -- >> right. bring it on. let the feds come in. >> so the state should do what the states do? >> absolutely. >> and if the feds want to deal with it, then come on. then the states could call the federal government a bluff? >> yes. >> that's accountability? >> yep. >> a very important question came up there. we'll hear a lot more about that. spill-overs. how do you deal with all the messyness? help us understand that the law enforcement and the obama administration make and how to deal with this? >> i appreciate being here with angela and michael. this whole thing reminds me of the story. and i'm just a country lawyer from colorado.
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of the guy who prayed to win the lottery ticket. he wanted to win the lottery over and over again. he was constantly asking the lord, would you help me? would you help me? i've never asked you for very much. years went by. he never won the lottery. finally he's down on his knees. help me lord, i need this money so badly. finally a voice comes down. saul, why don't you meet me halfway and just buy a ticket? >> com and washington just buth ticket. they bought a ticket to this lottery. is this this kind of lottery that can be good or bad. if you don't like lotteries and i respect that some people don't like them at all, can this be a less lottery than it otherwise might be. think about the winners an losers because when you decide the lotfully a state or anywhere else, you are thinking about a world where you're maximizing public benefits or you're minimizing the untoward
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effects of the behavior. you might say it's all bad but you might say this is an imper fect world but we're going to make some people very, very rich by the way but we're going to try to maximize some social value. who are the winners and the losers? take it with a grain of salt. big loser here if they don't step up is congress. if ever there were an issue that congress ought to address it's the marijuana conundrum that we find ourselves confronting. and i say that knowing that i'm in d.c. and everyone will probably say, you know, there are so many important issues here, the budget crisis, the manufactured fiscal cliff that we all went through, the she raid of the fiscal cliff will create a crisis and then we'll somehow save the day through partisan sniping back and forth. this is a real issue. we need some guidance on this, folks. and congress is a place to go. we're having the discussion in
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colorado. i applaud my friends for working on this issue. we're take ug about the imply mentation issues ranging from taxes and how do you set the right tax level. and we have a separate on taxes in colorado. you can't raise taxes unless people decide you have to vote to raise them. the legislature can't do that unless we decide as voters. which is great by the way. i love that initiative. we're going to have a proposed tax on marijuana in my state. if you state the tax too high you might have more black market behavior. that's part of a democracy that we have to work through. why can't congress be relevant? are we that cynical that we think they can't take on an issue as important as this one? and voters are voting with their feet. 18 states now medical marijuana have been approved. a be it there is a problem with the criminal code. colorado, washington.
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and you have close votes. even arkansas was moving toward some recognition of cannabis. you're starting to see even in the deep south there's a sense of some change going on here. so congress, could be a loser but there's a chance for them to win. they have a state option bill. let the states opt out. i realize there are a lot of problems with that look back to f.d.r. and the 1932 election that's how he was able to emerge the wets and the dries and begin to move our country through some understanding of a contentious issue that ultimately has good and bad effects no matter how we sort it out. so make congress relevant. and demand that they do it because what else are they doing to help us out in the trenches? the president win noss matter what. he's already won. he got more votes in colorado
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as george southerlies said because of the turn toout from this amendment which by the way dwarfed his own vote in my state which he won unexpectedly. the president will be vague. the justice department, i hope they'll continue to be vague. they don't need to tell people how they're going to enforce the law. the laws are on the books. quit whining about we need eric holder to tell us what to do. stop it. we're americans. we know they have prosecutorial discretion. congress can step up. don't whine about the administration. the president's already won. the states could win big. we have a robust debate in colorado right now going on. i talked about taxes. we need to talk about issues like potency and consumer protection, what to do about young people. all these specifics are the product of a debate that's going on with the governor's task force a lot of good people from different parties. we can wait for the feds or stand up and do what we do
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which is run of our lives and we're going to do as much of it as we possibly can and we'll see what happens with that but states and federalism really could gain. federal law enforcement, my friends i serve with you. you win. you absolutely win. you're more important than ever because regardless of how this marijuana discussion goes, we have tremendous drug issues that will come with it. there will be a black market. my friends from the d.e.a. are going to have to take on that challenge as they do so effectively today not just here but aren't the world. look at mexico, they're having a discussion on marijuana decriminalization much less popular in polls in mexico than it is in the united states but they've had so much carnage. 60,000 dead in the last six years. 25% of what the cartel supposedly make in mexico comes from selling par -- marijuana to the united states. so our friends from the d.e.a. those who support them
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elsewhere and those task forces that michael talked about at the state and local level, they have plenty of work to do they'll be more rem vant in the future as they deal with the prescription drugs which is a whole matter we're going to talk about. when are we going to get serious about that threat and many other threats that we face? do the people win or do the people lose? you know one president said and i have to quote this quote. we cannot possibly imagine a successful form of government in which every individual citizen would have the right to enter fret constitution according to his own convictions, beliefs and prejudice, chaos would develop. that was dwight eisenhower during the little rock school crisis. you know, we have to recognize this tension between the need to uphold federal law and make it relevant. on the other hand to recognize that people want change. and sometimes they're impatient for change. and sometimes in our society there's a reason for them to be
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impatient for change. and so as we look forward, as the best way to honor the constitution is to have everyone do their jobs. we'll do the best we can at the state level. we could use some help. we know congress could help us. they could help us today. i pray they will help us. they should do their job and they can set the law and we could begin o have a discussion about how to deal with this new lottery that we've all created. thank you. >> thank you. again, let's clarify a little bit what the options are here a little bit. you wrote a very interesting article arguing that there's a need for congressional action. walk us through why that's important. give us briefly one world in which congress essentially does nothing, remains preoccupied. when you say it's really possible that congress would do nothing to stay gridlocked, i hope that was a rhetorical question. >> oh, of course.
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please forgive me. >> walk us through a world where congress does not an we're relying on policies set by the white house possible unset by the next white house. compare that with the world where congress steps up and acts in terms of the practical implications of each? >> it's a big question and just a very brief answer. cops need clear rules. we expect that of them. they have to be able to follow the law as they know it. they're not law professors. and they shouldn't be. we've got to have some clear direction as to what to do. we've got two states to opt out of the federal criminal code that's a problem. we've got the other states that are medical marijuana states. in my state we passed it in 2000. suddenly when the state really announced that they were going to allow the regulation to proceed seed, let the dispensaries flowish and the feds did nothing. they really did nothing.
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and i was there. i was part of the doing nothing. we ended up four years at the election, we had a tremendous increase in dispensaries. in denver we have more dispensaries than starbucks. we had a tremendous reduction in the age of the average user from an average of the mid 50's when the initiatives was first past in the year 2000 to 28 years old by the time of the election this past year. basically what happens is that the state will be experimenting just as angela said. unless we have some clear direction as to how this should develop, what we do in colorado is going to drive and washington will drive a lot of behaviors in a lot of other states, surrounding states that don't want this. just as in pro biggs they should decide no not have it. how do we expect the d.e.a. and local drug controlled task forces to be able to con twend that kind of a problem?
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internationally we're going to be affecting canada, mexico and other parts of the world. >> what does canada add here? >> they could clarify as in the case of an optout that is possible for states under certain conditions to go their own way but i then there would have to be some national consideration as i just described. the other thing is medical mar wan avement it's about time that we do a pharmaceutical clinical trial, shouldn't we? we have some exceptions that those who are experts in scientific medicine determine what the value is, what the potency, what is the medical value and be able to take it through a clinical trial. should it be dispensed through private businesses or pharmacies? we haven't had that discussion. we need congress to have that discussion as well. >> michael, do you think there's a role for congress? >> i think that's a theoretical
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question because i think congress is out of the ballgame in just about everything. and has no intention to go back. there are a million issues that it ought to revisit. a million issues under the affordable care act that it ought to revisit. there's a million issues here, there, everywhere. and the reality is we live in an executive state and congress is impotent. and that's not going to change. >> so in practice, the world we live in is one in which there's a policy that's going to be made by the state and the white house suing each other? >> not suing each other but this a very messy policy environment. and i just want to sort of add one thing to this. and i don't know whether troy and i disagree on this. you see this more and more frequently that the administration decides to -- it knows that congress won't do anything, makes policy by
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official announcement of nonenforcement. so we're going to have our own defacto dream act which congress refuses to enact by administration nonenforcement. that's very clear. you might see the same thing in drug enforcement -- we're not going to enforce it, period because congress won't enact a law to that effect. i find that sort of to go much beyond the ordinary exercise of administrative and executive discretion in law enforcement. it's policy making by nonenforcement which is to my mind a very, very -- in the teeth of congressional statutes to the contrary, there are real policy difficulties with that, but there are also real constitution problems with that. it's just sort of much more sign-off dysfunction.
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>> if that's the environment we're to talk about if congress stays out and you get a vacuum in which there's a lot of back and forth is that a stable environment? >> i'm a friend of experiments. michael implys that essentially if you're pro experiment tation you have an agenda and you're trying to reach an objective. i'm not pro legalization or anti-legalization. i'm pro good public policy. you can't make an information vacuum. and we need these experiments. whether this is a stable solution -- i don't think we could have an experiment in one year. you need a long enough time line. that's going to be another question. especially with the major criminal justice reform act. nothing looks in 2001 the way it looks in three and four. in a way i don't mind the wink
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and the nudge. it can be the nonenforcement subject along with some constraints and subject to you minding your manners in other state making sure this doesn't spill over and making sure you're not promoting. make sure you keep your own use in check. make sure depen sen si are in check and make sure your state is responding responsibly in this environment in which we're unclear what's going to happen. but we're given little time to figure it out. >> wait until they put appropriation drivers on it. i have good news. we do have seats in the front. come on up. the other piece of very good news is that i'm on the panel. before we go to questions, i want to throw a few comments of my ofpblete because as monty python once said now for something completely different, i'm going to bring in what's going to be a side issue briefly as henry
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iv said, i won't be keeping you long. but this is not a side issue. i want to talk for just a minute about the lessons of what i think is perhaps one of the great public policy successes in the last 10 years or public process. and that's the gay marriage. from the day i started i've been advocating going through that as that state level issue. and not nationalizing that issue. and it turns out to be surprisingly relevant here. i just wanted to take a minute to get you all thinking about that and the lessons we learn from them. marijuana, gay marriage, what do these two things possibly have in common? actually a lot. both specifically and generally. specifically they are both very controversial moral issues, a point i'll come back to. they break down heavilyly along generational lines. there was once a strong
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national consensus which is now broken down. we see regional disparities between the libertarian west and the judgmental south. we have rapidly changing changing opinion in gay marriage and mar wan avement both of these issues have reached a tipping point where 51% of the population calls for a policy change. they're both being waged primarily through a ref pren dumb, like it or not not through legislation. and they are both in the united states and to a large ex-innocent the world completely untested policies that the public is being asked to digest. they're similar in a broad irsense. they're what i call defacto social issues. a social issue is a moral value issue. it's an issue where they're divideed not policy lines but along the issues of right and wrong, good and evil. these are very difficult issues
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to compromise on as we know from the abortion debate which is the granddaddy of them because you're talking about fundamental values. one of the values we've seen in politics in the past few years, it is more and more issues that are not inherently social values issues are acting as if they were. immigrations is one of those. that's become a law and order issue. it could be an issue how much border enforcement is cost effective. it's about our people obeying the law and on the other hand compassion and human rights. obama care has turned into an issue. are we going to have a socialist country or not, not a health policy question? gay marriage is a social policy question. it's not just like can first cousins marry? it's fundamentally do you approve of homosexual conduct or not? what is your view of the bible? what is your view of tradition, human rights an equality?
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things that are hard to compromise on. and marijuana also behaves as drug policy does as a social policy issue, the social values issue to a large extent. president obama and the administration has said, we're going to deal with this as a legal issue. we're going to do what the law tells us. unfortunately, the law isn't all together clear on this there's going to be a lot of tussling over the law. drug policy doesn't settle it handily either partly because what we're talking about is making decisions in a vacuum without having information yet. how do you handle these very contentious social issues so you can reach a point where the country reaches a stable more or less sensible outcome without a 50 year culture war the kind we've seen on abortion? here's where i think gay marriage offer as very important lesson to some extent i am in disagreement with michael. i think it's been a complete success. now, it's not a success if you're a gay person and a
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married gay person as i am. and every time you commute home in virginia your marriage di appears. if you believe that we should have one national marriage policy against same sex marriage and you want a constitutional amendment to ban it. however it has been a huge success for our country as a whole and for gay marriage because it does four things very well. first, the policy is delegation to the states which i should have said clearly this is how we handle gay marriage. federal government take no action. first it deduces information. states have had a chance to try the policy to see what happens. we know whether the sky falls or not. we know whether divorce rates falls up and down. we're starting to get to that information which leads to the second advantage. you're much better at managing
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risks if you don't have to manage the whole country. that also allows very important politically for adaptation flexibility. we don't have a national consensus on marriage. and we don't have a national consensus on marijuana. my view is we won't on either of those issues have anything like an encompassing consensus any time soon. though i think we'll get there. you don't want to set in concrete a policy which time very quickly undermines because it's not the standby public opinion. del gailting matters -- delegating these matters can adapt to changing public opinion as it has been doing on gay marriage. finally delegateding the policy gives you time to it, it would preempt on what is the right
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policy. that debate has a long way to go. gay people benefit very, very significantly from letting it unfold. marijuana, i think is similar in all of those respects. i think that from a point of view of wids dom set aside law, the federal government ought to view what the states are doing not as a threat but as an opportunity. an opportunity first to adapt to changing public opinion without vetting the whole country or putting all the policy on an inflexible footing where it just crashes down because people aren't with you. second a chance to find out what works and what doesn't work. angela points out that we need to get answers to if we're going to do this right. i think some of the allies in our prosecution of the drug war would love to see a sustainable and workable policy. third, the federal drug war has been frozen over what exactly
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marijuana policy and drug policy should look like. this is an opportunity to start that debate. it would be a pity to not have that. it is important to note a very important distinction between the gay mar wage debate. it was easy for gay marriage. marriage has been a state issue since before the time of the constitution. going back to colonial days, marriage was state issued. that's made it easy for the federal government to step back. hasn't made it politically uncontroversial but it's made it natural. on drug policy the federal government has been the primary actor for a century remains the primary actor. it would be a real change of direction and not a natural thing at all for the federal government to say we're going to see this to state level experiment tation. that would be a major shift in direction and not a
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particularly easy one to perform. with that as a caveat, let's launch into -- why don't we go into -- we've got 35 minutes. we've got some extraordinary people in the audience. we have respective of foreign governments that are directly involved in drug enforcement. we've got people from the drug enforcement administration. we've got white house off of drug controlled policy. we may have others judging from the rsvp list. oh, by the way. i forgot to mention. now we have a twitter #. the twitter #is brmj. if it's not a good question don't bother. so there's a roving mic. let's see who will break the ice. i can not resist his hand with
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a cowboy hat. >> we know where that is going. >> thank you. howard wooldridge founder of leap. i'm concerned with this panel and the one i saw in october the lack of discussion on public safety. from my perspective 18 years a street cop, marijuana pro he biggs reduces greatly public safety. there was a hearing, 200,000 children live in the home of a sexual abusive guardian because my profession is only arresting 2% of the parents that have child cyber porn. as a police officer, i know we pent about 10 million hours to arrest about 800,000 people for marijuana. what is never captured in statistics is when we are certainlying in a car and there's no marijuana found, it's not captured with statistics nationally. so we're spending millions and millions of hours chasing these green plants. we're flying around in a
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helicopter as opposed to catching the pedophile in a chat room for example. during my 18 my 18 years, i weno zero calls for service generated by the use of marijuana. alcoholic hughes, 1300 including homicide, rape, etc.. i would like to -- are you speaking to the street level cops, especially those who are retired? to determine how much police resources are put into chasing the green plant? >> why don't we take a couple since we have a mic in the vicinity. >> i am from one of those governments you mentioned, the netherlands. >> in the context was "even" the netherlands. >> the united states is becoming a more than broke country and the netherlands on issues like
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gay marriage and legalizing marijuana. we only decriminalized it, as was mentioned. i would like the panel to address the international implications when the federal government would decide to leave these states in these books because it is a violation of international obligations by the united states. they ratified several treaties which do not allow for legalization of marijuana. if the united states decides not to enforce these international obligations, what would the effect of broad be? you have asked other countries to obey these international treaties. could that mean that other countries that produce the drugs, what kind of effect would that have?
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>> why don't we do those two? i was hoping you would tell us how this affects our international obligations. who want to -- once to talk about resources diversion? >> in terms of cops on the street, i appreciate the point of view. in colorado the debate is relevant to what you are saying. the main issue is to determine someone is driving under the influence of drugs, what is that standard going to be and how will we test people in a way that complies with their civil- rights and has the effect of addressing public safety? we had a lot of testimony, a lot of speaking out from law- enforcement to route that campaign about public safety implications and weather moving toward legalization was better or worse than the status quo. i will tell you, and
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prosecution, there is disagreement. i have heard passionate disagreement. one thing we have to do is have a standard that will protect people so that people know there is going to be a safe system for them. we are not sure how to do that. i think your point of view would be valuable in our state. >> you are against legalization? >> i was opposed to it. i also predicted it would not pass. my credibility is nil. [laughter] >> i predicted it would pass. i hate to say this, public servants can figure out if it makes a difference. i think people are divided on the issue. some beginning -- some believe this is the beginning of a new
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europe. i do not -- i am not an advocate and would like to see it in a couple of years. >> it is not clear it is the same way in every jurisdiction. how about international? this is tough because there is no easy answer on this. it is already the case they are at different places on this issue. nothing changes that unless we can imagine a world where public opinion swings back and we go back to 850 state policy. what do we do about international obligations? >> this is another example why you cannot let the states do their own thing. you will have to consider those issues. if you stand back, this is different from gay marriage. it is not a crime to marry somebody. nobody is criminalizing back. this is why congress passed to
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lead. we live in a world where you have law enforcement resources in the tens of millions devoted to a policy that states have said we do not want a part of. we have to get some leadership. we have obligations those of us in the state, whether we voted against it or against it, with all due respect, i do not think anybody thought about the netherlands when we voted on this thing. >> what of congress is not stepping in? what happens? >> he is usually right. >> what happens? >> i do not know the specifics of the treaties at issue. this is another issue you mentioned, that that will come to the forefront. our international obligations do not bind the states.
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it is true in this regard. if we, the united states, find ourselves not to decriminalize marijuana, the state governments, at the answer to foreign countries unless there is something in the treaties we have committed, the answer is sorry. >> this is an uncomfortable issue. we spent so much time on other treaties. i might have some help from the audience. the 1972 treaty, there is precedent now denouncing the resolution -- >> bolivia.
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>> if that goes through, the u.s. could -- the u.s. could it do the same thing with marijuana. i think we are in uncharted territory. >> let's take a couple more. it would rehash tag reminder. -- a twitter hashtag reminder. let's go to the gentleman in the back. but let's be democratic. thank you, yes. >> i am drew with students for sensible drug policy. thank you for your comments today. i commend you for taking a pragmatic approach. i was wondering if you would
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clarify what your ideal congressional solution to this would be? it sounds like you are advocating the way the federal government regulates alcohol, which is we've set up to the states. >> i think that is a fair statement. i like the idea of an opt out bill. i think that is a good approach. there should be some minimal requirements with that. we need protections for young people. you have to have a workable standards. you will have to respect a national agreement. that is the approach i would take. i am not troubled if somebody goes in a different direction. while i opposed the amendment, my position is, congress should be doing this. i have written elsewhere, congress needs to have this discussion and step up to the plate, reflect the changing
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attitudes on this issue and figure out to do what to do about it and come up with a political compromise that reflects reality in a way that we do not today have in our policy. >> let's take the microphone to the front. up front, wecome have it gary mitchell, we will take three. and the gentleman with his two fingers of. >> thank you very much. i write to the mitchell report and i want to ask a question from the first one that was asked about law enforcement's perspective. i will direct it to troy but others can comment. in the hearings, and the conversation in colorado around the legalization, what were the perspective you heard from the public health, social service community? >> mr. mitchell, and that is a
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great question. >> let's run up a few. the gentlemen in the red tie. >> i am an economist, which means i am in favor of more liberal drug policies. i am also a retired analyst which means i do not use any illegal drugs. i got interested 40 years ago in graduate school. i was persuaded by the argument is less dangerous than alcohol and tobacco. it was also a time when there were major marijuana commissions in the u.s. and several countries, all of which recommended more liberal policies and only the netherlands followed the advice. in the west, we still cannot get marijuana out of the controlled substances act even though it does not meet any of the criteria. how is a drug policy immune to
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common sense? [laughter] >> all right, there was a gentleman here. >> thank you. my name is francisco, and a colombian american economist. for 25 years i have studied illegal drugs in latin america and a year ago i was nominated and was elected as one of the 13 members of the united nations control board. what to say is true, the united states, the states do not have to comply with international treaties. the problem internationally is the international regime is our creation. it was created by the united states so this is going to have
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great repercussions. i do not know exactly what we will have. this is not neutral. if the united states says it tough lot, we're going to have to confront japan, russia, sweden, for example, the three most aggressive prohibitions. in latin america, in three days, on the 12th, they will vote on the air readmission of bolivia to make legal coca chilling. five days ago, there were five countries that objected. the united states, the united kingdom,, and canada, italy and sweden. what we see is a contradiction
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in policies and from a latin american point of view, we see what is a double moral. of the united states. that is going to have consequences in terms of, not just the war on drugs in latin america, but on the credibility of american policies. what we are doing in colorado and washington is not just domestic policy. it is the best -- international policy. >> we can take two of those comments, rather than questions. the first one in terms of the public health perspective in colorado, and there was a question -- >> i would say that we did not have that debate. the reason, angelyn mentioned this, this is an initiative. there were no hearings.
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you have to frame your question people vote on. that is it. to answer your question, we did not have a discussion. i have read a lot of this literature and i commend angela for her work but we do not know about marijuana in terms of medical benefits. everyone needs to admit that. once it goes through a pharmaceutical trial and we have the dna, then we will know and we will know when to dispense it and how to use it. iss idea we'd know so much, false. we do not know. we have to figure it out. we have an obligation. we have tens of thousands of people with medical cards that medicine with a guy with a sandwich board same prescriptions, no doctor required. that is the world we live in, the hypocrisy where we do not trust the medicine and science.
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>> to go to a point he made earlier, that is a process that .akes years, we are at the beginning of a long road. >> apropos something you said, i am not against experimentation. i am actually in favor of it. it is difficult to stabilize it. to take the game marriage example, i totally agree with you. so far the process has worked well. it is also the case we may not get enough time to run actual experiments because, half of the gay rights community -- it does not go fast enough, they are going to jump the gun on this.
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the problem is not totally similar in the marijuana situation. but i agree with you. you need some states that do not go down that road. you do not want the process to overwhelm the country where states that might be holdout's say, it is not worth the trouble, the enforcement cost is too high, what ever. that is my point. how hard it is to stabilize -- >> nobody is asking for a lot. what has happened on the marriage, which is interesting, although nine states have legalized it, a much larger number of states amended their constitution to forbid it. the result of that, although people feel strongly one way or
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the other, the result is to call off a certain number of states where it will be hard to run the experiment at a rapid pace unless the supreme court weighs in. it would be interesting if they decided to pass an amendment saint marijuana is illegal and you cannot change that without changing the constitution. something like that might happen. i do not know. to the gentleman who asked about, why is the policy and into common sense? my favorite quotation about policy, the problem with some people is they think this places on a level. [laughter] bear that in mind. let's go back to some more comments. we have three hands in the back. keep your hands up until the microphone reaches you. >> i am from the safe foundation.
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i would like to point out, my comment is regarding the international implications. i am glad the gentlemen from the netherlands pointed that out. i come from india or most people believe the u.s. plays head i win, tail you lose. therefore it does not follow any international laws itself but forces others through blackmail or bribery to follow them. given it would be good that this regime breaks down because a lot of countries can go away they think is right, i would like to know if that is it acceptable to the united states. >> an interesting question. what is safe? >> it is attempting to make the world safe even though it is getting worse.
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>> we had a couple of others. >> when you started talking about winners and losers, i was hoping you are going to follow the money. as this a trend plays out, will, for example, narco traffickers convert themselves into profit- making narco traffickers? will the states be able to tax enough that the trade will be profitable for the states to want to change for fiscal reasons? other issues like that. could you address them? i am sure you have given it thought. >> we have one more in the back. >> david with stop the drug war.org. mr. eid, you commented earlier
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that you do not think the doj should announce a policy for a marijuana initiative. i assume you hold that rick regard to medical marijuana. -- with regard to medical marijuana. what should be the policy, if there should be any? is it possible for there to be a policy or understanding that does not become a matter of public record? >> i will answer in reverse order, the policy is the law. the criminal code is what it is. that is my answer to you. you have to understand, the fundamental issue, are we going to allow this or not? that is the question in our democracy for congress and not
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for some appointed official in the executive branch. not accountable to anybody that the president of the united states. not accountable to an electorate. i would just say to you, it is an interesting question. i was wondering if you could restate it. i am not sure i got all of the nuances. >> we will see all kinds of changes in the drug market, will it be legal money convert to legal operations and enforcement issues? >> that is a great question. i guess i would say in 1984 the congress tried to take on the issues of the modern, what me know as the cartels. the idea was we are going to spend our resources on the big
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fish. we are going to go after the organizations that cause violent crime. that is our national policy. i think it is a great policy. it is the mission of the agency's that support that effort, including these task forces. we have nothing in these countries without the task forces. on the ground, that is what we do. we do not have the agents everywhere. they are strapped to the hilt. they do a great job but you have to use the locals and their expertise and their resources to accomplish anything in terms of dealing with the drug control priorities of getting organized crime as your target. this is why we need leadership that the federal level. we will have some experiments, and depending on how the fed street what happens, but we will eventually have some taxes in place.
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and a lot of commentators have already said that tax is too high. the bottom line is that law enforcement is going to be dealing with the same organizations they are now. i know this is controversial but i will say it, dea did an analysis and it is an industry. we have thousands of dispensaries. the analysis showed that half of all of the folks involved in dispensaries had prior criminal convictions for serious felonies. that was explosive when that news came out, the media picked up on it. good folks convert themselves -- could folks convert
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themselves? the answer is yes, they do. what we'll have to safeguard, we're going to have a lot of people who are really good at drug distribution and understand the industry better than the mom-and-pop operators in silicon valley. they're going to focus on capturing this market. this will be a tough time for the dea and the justice department. we have to have a debate about what happens in terms of crime. the bottom line is there is a sense this will make violent crime go down. i hope that is true. but i am not convinced because until these externalities' are addressed, we will not know and we know a lot of the people already in the medical marijuana business, and there are a law- abiding people that, except they do not follow federal law, those industries have, as we have
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seen, a lot of folks who are bad guys. >> can i ask two questions that might sound paranoid? suppose there are local officials that insisted that dispensaries, what ever they are called, in setting up these things, under federal law, and along the same lines, this shows i am a paranoid libertarian, suppose these dispensaries, the gentle and enterprises under state law -- legitimate enterprises under state line, put their money with a dabank. but the treasury say you are in violation of 15 federal laws? but if you buy the next
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countrywide, we will make it go away? [laughter] >> i think the answer is yes, and yes. no, those are great points. this is an issue for us in colorado. what do you do with state officials? we have an apartment that as a marijuana enforcement. that is what we do. -- a department that does marijuana enforcement. that is what we do. she would seize cars and so on that had marijuana and now she is actually enabling this because that is what our law requires. federal law does not require any of that. i actually did a survey and i have not seen a single federal prosecution against a state official. this gets to the point about the
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de facto policies which flopped -- robert s. of our liberty -- rob us of our liberty. >> do we know anything about the effect on the market, the drug market? >> people will be using more. we do not know how that will go into other behaviors. if they use less, there might be less. crime will go down, to what extent, we have seen exaggeration about tax rates. >> the gentlemen in the back made an interesting point. so what if trees fall apart? and maybe it is good at the international level. any thoughts? >> it is a tough one. i appreciate the gentleman from
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the united nations and so on. i love my country, but, we are not out to try to do something bad. we are just focused on ourselves. i am really sorry that other people suffer. we are going to make more foreign policy if we do not get leadership out of washington that is relevant to the people in fly over territory. we will get more policies with immigration. eventually, we will solve that issue. that will be addressed, regardless of what congress decides to do. >> i completely agree. at the constitutional issues are one thing, an attitude of go fly a kite displayed on an international scale is a different matter. i am totally against that. i suggest they do not confer any rights on the united states
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government. >> of the world looks to the united states for leadership. this could be seen as an opportunity to lead. we would like to see what goes on and we are going to give them time to figure it out and learn. we will share with you what we learn. other countries can learn it is ok, too. >> that would require an official policy statement. we got back to an earlier attention. we have about four minutes left in five or six questions. he wanted to a lightning around? -- do you want to do a lightning round? >> my name is steve with the
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marijuana policy project and was one of the lead drafters of the initiative in colorado. hi, troy. >> good to see you. the law in 2010 mandated background checks for owners of dispensaries. the owners are completely felony-free and legitimate. we just want policymakers to know that. that leads into my question about the process. the obama administration has not attempted to meet with the drafters of the initiative or any stakeholders in colorado or washington. i am wondering whether you think that is an inappropriate way to settle the conflict. >> they have been busy lately. >> any others? the gentleman here. let's make them quit. >> neild franklin, director of
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law enforcement against prohibition. we hear about leadership. we have been impotent congress. the leadership there. this is an opportunity for the president and his latitude. i know the executive branch, in forcing the lots, but what can he do? -- enforcing the law, but what can he do? i hope these answers get to him. >> let's go to the gentleman in the beard. we also have a couple tweets. >> my name is still in. i wanted to get back to the broader issue -- is dylan. i wanted to get back to the broader issue, and came marriage and marijuana were redefining federalism in a lot of ways.
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i know this is vague, but what are the potential ramifications for our system of government depending on how these play out? >> i love how we saved a little questions for the end. [laughter] >> ashley from l.a. as asking how many states require grading, standards for dispensaries and how important is that? >> how many states grade dispensaries. we will not be able to define the federalism. no meeting with the drafters. i'm going to roll we do not know why would they have not done that and it is not our place to say. how much leeway does the administration have to make policy without legislation is a big question. how does this redefine federalism is another big
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question. let's take both of those two. it is a good opportunity for parting thoughts on what the stakes are. >> a half to make major decisions, infrastructure is building to do -- they have to make major decisions, infrastructure building is hard to do. these men are smarter and know more about this than i do, but this is where we are going to give you time to figure it out. add one item on policies that conflict, that is the right to work, which is huge
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in a lot of ways. i think you'll be seeing two things over the coming years, when is the states will split on more and more of these issues. and among some of these states and the federal government, and the other states' relations will become more conflictual. >> will we see a hodgepodge of coalitions or are we seeing a pattern? >> if you look at most of the issues, i have not followed the marijuana thing, but if you look at labor, the environment, a
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variety of social and cultural issues, and health care, which he mentioned, it is always the same coalition. there is certain stability there. and i think that is a terrific thing. >> what we are seen as part of a larger process, of a reallocation, within the states and between the states. troy, how much leeway as the obama administration have? you gave an answer which i do not find satisfactory. just enforce a controlled substance act. but they have to make some hard choices. how much room does the law give them? >> they will maneuver best they can. this shows that federalism is alive and well. the real action is that the states. states' rights is a tarnished concept in our country. even the term is coming to be embraced by a new generation as something that is positive because you see these controversial social issues being addressed at a state level. that is a good thing that is
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happening. what i would say is that, it is easy when you are a middle-aged man to talk about the rule of law. but we have had a worse moment than this. we have been through some tough times as a country. getting young people involved in the process is wonderful to see. i am very excited about the fact more people are engaged. i do not agree with all but but the debate will be better and i think it will force congress to become relevant again. >> that would be interesting. and and lifting thought on which to end and remember the constitution is a mechanism to force conflict between actors in government on an ongoing basis. that is the founder's vision for dynamism in a changing world. here at brookings we are so used to panels bemoaning the process. it is nice to be able to end on a note of saying, this is what the founders thought they were
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setting up, this tug of war. thank you for coming. this debate is not over. come back for the next round and the ground after. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> next, a discussion about terrorism and national security laws. then eric schmidt talks about innovations. and the role of capitalism and today's society. on news makers, javier outlined his priorities as the new democratic caucus chairman, the role of the democratic leadership in the congress, and issues including the debt ceiling, immigration, and gun laws. newsmaker is this sunday at 10:00 a.m. and 6:00 p.m. eastern on c-span. now, a discussion about the balance between combating terrorism and national security. lisa monaco, who leads the
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national security division, talked about prosecuting terrorism cases and coordinating the work of law enforcement and the intelligence community. this is 25 minutes. [applause] >> thank you very much for that generous introduction. i am going to have to focus on the chinese proverb. it is not one that i had seen before. good morning, everyone, and thank you for coming out this morning. i want to thank the standing committee and the work she always does to put these events on and, of course, jim. and all of you and coming out this morning. i'm going to spend a few moments this morning talking
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about the role of the national security lawyer and the unique position the division occupies in that regard. and also about some of the emerging issues we are facing and we are focusing on in the national security division. we will have a few minutes for some questions. we will see who has had their coffee this morning. those of you who have been in washington for a while will recall a time before the justice department had a national security division. the organization i have the privilege to need is the first -- to lead is the first new litigating division in the apartment in almost 50 years. before 2006, when the national security division was created, the department's counter- terrorism and has denied
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prosecutors' were in different parts of the department of justice. there was no single, unified national security element within the department. of course, that changed after 9/11. our government made sweeping efforts to integrate its national security elements, recognizing that since this is an integration, were key to connect the dots. congress also created the department of home and security, and the national security elements of the fbi were merged into its national security branch. these efforts were born of the need to institutionalize and facilitate information sharing and to bridge a gap that existed between our intelligence
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and law-enforcement capabilities. on the heels of all of this change, it also became evident that and other service was in high demand, it is what the wmd commission called "thoughtful and constructive legal guidance." following recommendations from that commission and others, the national security division was created within the department of justice to make sure we have a unity of purpose among the intelligence community and law enforcement and prosecutors. today, the division's functions reflect the removal of legal and cultural barriers. nsd has brought them under one roof and is in closer alignment with those of the fbi and the rest of the national security community. nsd's lawyers worked as
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terrorism prosecutors alongside their colleagues in the u.s. attorney offices around the country and they work as intelligence lawyers. they provide guidance on cutting edge questions and they make sure the intelligence community has the tools it needs to perform its vital mission. and to do so consistent with the rule of law. excuse me. above all, our goal is to serve as a practical problem solvers. and questions that we confront alongside our partners, and as our goal is to keep pace with an evolving threat. stepping back a minute, it is interesting to think that the idea that lawyers could be a positive, innovative force multiplier for our national
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security community, i think that might have seemed a novel concept to those who view lawyers as necessary a evil. lawyers have always played a part in the development of our national security systems. it was general dalton, the father of intelligence, who have was a lawyer from new york. it was another new york lawyer, henry stimson, attributed with having shut down our first intelligence unit after world war i. lawyers have been on multiple signs of the development of the national security community. since the days of wild bill, the number and prominence of legal questions to the national security realm has grown significantly. an important question arises. what is the role that lawyers
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should play in our national security system and where does nsd fit in? the answers to those questions starts with integration. lawyers who are part of the mission they serve will serve better in their job. they will be more attuned to the reality. they will be more relevant to the people they are working with. they will make legal decision part of operational planning, rather than an afterthought. knowing how to ask the right questions requires knowing and working in environments that enabled robust and close cooperation. that is why our job is not to wait for legal questions or to provide advice on operational decisions after those decisions
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have already been made. our job is to be present at the beginning and throughout the process. just like other senior national security officials, the person in my seat has attended the morning terrorism threats briefing, and just like the intelligence operators, analysts and special agents working these issues, we aim to stay on top of the threats picture and to help devise tactics and strategies and tools for getting ahead of it. today, it is standard procedure for agents to consult throughout the process with attorneys and prosecutors in the national security division. that is to ensure all potential avenues for disruption of the
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threats, intelligence gathering, investigation and prosecution are all preserved. i would be very hard pressed to give you an answer. we're almost always pursuing multiple tracks at the same time. we no longer have to cross organizational lines to bring tools and talents to bear against a particular threat or problem. lawyers in our office of intelligence work day in and day out with the intelligence community to secure authorities under the foreign intelligence surveillance act. there also charged with conducting oversight of certain activities of the intelligence community to ensure the government's exercise of those authorities is balanced with
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the protection of individual privacy and civil liberties. the same attorney's work closely with our prosecutors to ensure the foreign intelligence that is collected and obtained from the fisa can be used to bring terrorists to justice all the while at safeguarding sensitive national security information. operators have the authority they need to keep the country safe, that those attorneys are working with the financial action task force to combat money laundering and terrorist financing. they're building counterterrorism capacity and devising guidelines for intelligence sharing and collection within the executive branch. in another part of the national security division has lawyers
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reviewing the national-security implications and potential vulnerabilities. this is a sampling of the kinds of things we do. it feeds a steady diet of work to our very talented team, but it only exists against a backdrop of an ever evolving threats. i want to spend a minute talking about one of the most significant issues that we are facing today. that is the threat posed by cyber actors. in many ways, this thread is not new. the department of justice for the computer crimes and intellectual property section has considerable experience fighting cyber crimes. we have experience dealing with those who see to exploit cyberspace, but the national security cyber threats picture has undergone a dramatic evolution in recent years. leaders in our national security community have discussed the threats we face
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and a forecasted that it will pose the number one threat to our country in the not too distant future. it is critical that we apply what we have learned in the fight against terrorism and espionage and cyber crimes to cyber threats to the national security. law-enforcement and other legal tools are well accepted parts of our national security toolbox. they're part of a whole of government approach to defending against national security challenges. we have seen a play an effective role and they can do so against terrorist threats. we have to train their attention on emerging cyber threats to national security. there are several challenges along the way. the pervasiveness of cyber technologies and the rate at which they change increases our vulnerability to attack. technologies can obscure a perpetrator's identity, it can
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wipe away digital footprints and leave the very lengthy investigative trail for investigators, analysts, and operators. depending on the circumstances, the purpose or the end game of a particular intrusion merely be anyone's guess. it isn't espionage? is it theft? is it mischief? or an act of war? in pursuing all of these avenues, justice and the counterterrorism arena, we must weigh the value to be gained by continuing and intelligence investigation against the need to use law enforcement tools to disrupt our adversaries' activities. and prevent damage to u.s. national interest. we have to do that just as we do in the counter-terrorism and counter-espionage arena. another challenge in this area is the cyber intrusions may affect a wide variety of the victims. all with different needs and
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interests. they may be private entities, some of your clients companies with shareholders, public reporting obligations. successful collaborations with all of these interested victims and companies are required understanding the competing pressures they face and the legal obligations they may face. the good news is we have on our side of history of learning to counter new threats by marshaling their resources and working collaborative lead to adapt. the work of my predecessors in the national security division is a testament to this. we are building on those past successes, applying lessons learned in the counterterrorism arena to the cyber realm. with those goals in mind, we
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have created in recent months a nationwide network of national security cyber specialist. this network brings together the departments for a range of expertise on national security related cyber matters. it draws on experts from the national security division, the criminal division, and from other areas of the department. this network is modeled on existing initiatives and prior practice against the terrorism and other threats. it is modeled on things like the anti-terrorism advisory council, which is created to address terrorist threats across the country, and the computer hacking network, which targets computer crime and intellectual property. as in those efforts, each u.s. attorney's office has designated around the country of point of contact for this network. the network is a one-stop shop
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within the department for national security cyber interest and activity. we are working closely together to bring our best resources to bear against the threats. we are using it to do more outreach to the private sector and to enhance our joint work with the fbi's joint task force. we have a dedicated lawyer sitting alongside agents and operators who are working this stretch across the community. all this is part and parcel of keeping pace with an evolving threat. just as we are evolving in the counterterrorism arena to address the diverse and centralized terrorist threats, we must meet evolving cyber
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threats to national security. we have to do so in a way that respects our nation's values and commitment to privacy. the damage that could be caused by a cyber enabled physical attack has potential to be dramatic. even if the catastrophic cyber event never materializes, there is no doubt we will face and we're already facing the threat of a death by a thousand cuts. consistent, low-level cyber threats that steadily undermined our national security. they siphon off some of our most valuable resources. even if the seriousness of the damage done presently -- the rate at which the cyber threat is increasing would be cause for alarm. i realize i am preaching to the choir. cyber security is a priority for
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the aba. the aba has assembled a cyber security legal task force. nobody knows better than many of you how important role lawyers play in safeguarding client information. cyber security, your defense is our only as strong as the weakest link. this is the kind of attention i think the cyber challenge demands. regardless of the size or shape of the cyber threats and the way they ultimately and the direction they take, we need to be prepared before they materialize. there is much we do not know
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about how cyber threats will affect us going forward, this much is clear. we can dedicate efforts now to harden our defenses and to lay the groundwork for working together effectively now i'm willing to the future. -- now and well into the future. responding to cyber threats is both a challenge and a charge for us. the measures we tend to respond to these threats must be sufficiently durable to stand the test of time and sufficient flexible to accommodate the changing threat picture. with the help of groups like the standing committee and the many thoughtful mines this morning, i am hopeful we will make good progress towards this goal. i want to thank you all for being here this morning and for listening to me and having me. thank you so much. [applause] >> we have a few minutes before miss monaco's staff puts me on a watch list. we can take about two questions.
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>> i appreciate you in both roles. hadink those of us who've clients know the challenge of having that duality. can you talk to us about how you balance both your role as an overseer for agencies and as an advocate? >> you and your lawyers know that we do play both roles. it is interesting, nsd the sit at this juncture. we are not formally of the intelligence community. we're not formally members of the intelligence community. that is probably the right balance. we have to make sure we are both earning the trust of the clients and the operators and agents with whom we work.
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by being creative problem solvers, but also maintain the ability keep that trust by being creative, by helping our clients work through operational issues. i like to -- the lawyers to work in our office, we talk about how it is important not to be dr. no. you cannot be red all the time. you cannot be green and a yes person and captive to the client. worst of all, if you are an operator, worst of all is to be flashing yellow. constantly on hold, constantly in limbo. we tried to act as a navigational device, earning the trust and being creative.
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helping you get to where you want to go, but doing so in a way that will be consistent with statued executive order and the rule of law. >> i have to say that not everything that we recommended worked out the way we expected. >> i have to say that not everything that we recommended worked out the way we expected. nsd worked out exactly as the commissioners had hoped. it has been a major contribution to the innovative lawyering in national security. i want to ask you about the cyber security crisis that we face. we do not have resources and government to investigate every one of the intrusions against private industry. the question is how can -- at the same time, we know a lot about the guys who are breaking into our networks. we have dedicated nt

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